transparency

Parliaments around the world have moved online, placing legislative information and other resources on public-facing websites. Fifty countries’ parliamentary websites — of differing degrees of depth and sophistication — were surveyed in a new publication from the Law Library of Congress.

“While the information on the parliamentary websites is primarily in the national language of the particular country, around forty of the individual websites surveyed were found to provide at least limited information in one or more other languages,” the Law Library report said.

“All of the parliamentary websites included in the survey have at least basic browse tools that allow users to view legislation in a list format, and that may allow for viewing in, for example, date or title order.”

“Around thirty-nine of the individual websites surveyed provide users with some form of tracking or alert function to receive updates on certain documents (including proposed legislation), parliamentary news, committee activities, or other aspects of the website.”

In the final days and weeks of the Obama Administration, intelligence officials took steps to promote increased transparency and made several noteworthy disclosures of intelligence policy records.

On January 9, DNI James Clapper signed a new version of Intelligence Community Directive 208, now titled “Maximizing the Utility of Analytic Products.” The revised directive notably incorporates new instructions to include transparency as a consideration in preparing intelligence analyses.

Thus, one way of “maximizing utility,” the directive said, is to “Demonstrate Transparency”:

“Analytic products should follow the Principles of Intelligence Transparency for the Intelligence Community, which are intended to facilitate IC decisions on making information publicly available in a manner that enhances public understanding of intelligence activities, while continuing to protect information, including sources and methods, when disclosure would harm national security. The degree to which transparency will be applied depends upon the nature and type of the analytic product.”

Interestingly, the revised directive was issued without any public notice or press release. Though unclassified and published online, it appears to be genuinely inner-directed rather than a mere public relations gesture.

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The Central Intelligence Agency posted more than 12 million declassified pages (930,000 documents) from its CREST archive on the CIA website. The CREST (CIA Records Search Tool) database had previously been accessible only to those researchers who visited the National Archives in person.

Release of the CREST database had been sought by researchers and advocates for many years. It was advocated internally by the CIA Historical Review Panel and the Panel’s chair, Prof. Robert Jervis. It was recently the subject of a Freedom of Information Act lawsuit by the Muckrock news site.

Joseph Lambert, CIA Director of Information Management, said that online access to CREST recently became possible only after technical limitations on the CIA website were “dissolved.” He said that the quality of the online search engine would not be inferior to that on the original CREST system.

One experienced researcher disputed that. Based on an initial survey, “I think it is safe to say that the level of functionality for searching is less than CREST,” the researcher said. From his perspective, “the losses are very significant.” A detailed comparison was not immediately available.

In any case, Mr. Lambert said that newly declassified records, and less redacted versions of previously redacted records, would be periodically added to the online collection.

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Also last week, the CIA released updated guidelines for the collection, retention and dissemination of U.S. person information. The Agency also posted declassified documents concerning its interrogation program, released in response to FOIA litigation by the ACLU.

With the exception of records released in response to litigation or legislation, these moves and these disclosures were voluntary. They seem to represent a realization that increased transparency, though occasionally awkward in the short term, serves the long-term interests of U.S. intelligence.

“Today, whether you are a U.S. citizen or a non-U.S. citizen abroad, you now have more confidence about what the United States does and does not do with regard to signals intelligence collection because of steps this Administration has taken to provide an unprecedented level of transparency regarding these activities,” according to an Obama Administration report on privacy that was briefly published on the White House web site last week.

This posture of increased transparency, if not these specific disclosures, can be easily reversed or abandoned. But an infrastructure of disclosure has been established, along with a pattern of releases, that will generate expectations for the future and a certain momentum that may yet be sustained and developed.

The future of transparency in the Trump Administration is uncertain. It will ultimately be determined in practice as the new Administration embarks on its programs, determines its priorities, appoints its personnel, engages with Congress and confronts the public.

On his first full day in office, President Obama famously pledged to conduct the most transparent Administration in history. Though it was imperfectly executed and suffered some reversals, I think that pledge was fulfilled to an impressive extent. More government information was made more easily available to more people than ever before. The reported volume of new national security secrets created in the past two years dropped to historically low levels. Whole categories of information that had previously been off-limits — the size of the U.S. nuclear weapons stockpile, the President’s Daily Brief, the size of the annual intelligence budget request, among others — were newly subject to declassification and disclosure during Obama’s tenure. If this was not the most transparent Administration in history, then which Administration was?

Donald Trump’s estimation of transparency already appears to be radically different. Although his Twitter persona during the campaign represented a degree of unfiltered candor that is almost alarming in a public official, it was unaccompanied by detailed policy proposals that might have informed the election. Trump’s refusal to release his tax returns as a presidential candidate was a startling repudiation of a longstanding norm of American governance. Worse, the fact that this refusal was not considered disqualifying by his supporters suggests that the norm is weaker than supposed. Far from being a given, the value of transparency itself may not be widely understood or shared by many Americans.

It’s not that Trump has promised transparency and failed to deliver. He has promised nothing of the kind. Hypocrisy on this point would actually be a step forward.

In what seems to be the first post-election reference to the FOIA by the Trump transition team, applicants for positions in the new Administration were advised that “One should assume that all of the information provided during this process is ultimately subject to public disclosure, if requested under the Freedom of Information Act.” (also noted by Russ Kick)

This is somewhat misleading, since various types of personal privacy information such as social security numbers would not be subject to FOIA. But perhaps it is a healthy sign that some awareness of the FOIA and its disclosure requirements is already present in the Trump camp.

The notion of “intelligence transparency,” which once would have been considered an oxymoron, is instead becoming institutionalized with the establishment of a new Intelligence Transparency Council. Director of National Intelligence James Clapper signed the Charter of the new Council on April 5.

The Council includes representatives of each of the 17 Intelligence Community member agencies. Its role is to identify and promote appropriate areas for intelligence-related transparency and specifically to coordinate and oversee the implementation of the 2015 Principles of Intelligence Transparency.

For a start, the Council is supposed to “ensure that the public has information that clearly presents the mission, authorities, and oversight mechanism that direct and guide the IC.”

Beyond that, it will also “serve as the principal mechanism to identify possible new priority IC transparency topics to be selected by the DNI and IC leadership for implementation” and it will “establish interagency working groups to address specific transparency topics, as appropriate, in order to advance IC transparency efforts.”

As an inward-looking body that mostly meets behind closed doors, the Intelligence Transparency Council seems to be an internal forum for grappling with questions of increased disclosure, rather than an obvious public relations ploy. The Charter envisions votes and procedures for resolving disagreements, implying that the Council could serve a decision-making function.

Significantly, the Charter signed last week by DNI Clapper will remain in effect for five years. This means that “intelligence transparency” is likely to endure as a problem and a challenge well into the next Administration.

The 1972 Federal Advisory Committee Act (FACA), one of the “open government” laws, generally mandates that federal advisory committee meetings be held openly, except under certain specified circumstances. But over the past ten years, the number of closed meetings has actually increased, a new analysis by the Congressional Research Service found.

“FY2014 reported the highest percentage of closed meetings (71.1%) during the time period of examination,” CRS found.

Official advisory committees can be an important mechanism for exerting non-governmental influence on the policies of executive branch agencies. So the composition of such committees, their operations and their recommendations are susceptible to political pressures. FACA was intended to help counter abuse of the advisory committee process and ensure a modicum of fairness to competing points of view, in part by requiring that their meetings be conducted openly.

There are normally around a thousand advisory committees subject to FACA. “Generally, around 70,000 people serve as members on FACA committees and subcommittees in any given year. In FY2014, 68,179 members served. In FY2014, 825 federal advisory committees held 7,173 meetings and cost more than $334 million to operate,” the CRS report found.

The Office of the Director of National Intelligence yesterday released a transparency implementation plan that establishes guidelines for increasing public disclosure of information by and about U.S. intelligence agencies.

Based on a set of principles on transparency that were published earlier this year, the plan prioritizes the objectives of transparency and and describes potential initiatives that could be undertaken.

Thus, the plan aims to “provide more information about the IC’s governance framework”; to “provide more information about the IC’s mission and activities”; to “encourage public engagement” by intelligence agencies in social media and other venues; and to “institutionalize transparency policies and procedures.”

The plan does not include any specific commitments nor does it set any deadlines for action. And it is naturally rooted in self-interest. Its purpose is explicitly “to earn and retain public trust” of U.S. intelligence agencies.

Nonetheless, it has the potential to provide new grounds to challenge unnecessary secrecy and to advance a corresponding “cultural reform” in the intelligence community.

Perhaps the most important thing about it is the fact that it has been embraced by the Director of National Intelligence, James R. Clapper, who announced its release yesterday at a conference at George Washington University. The DNI’s endorsement gives it an indispensable bureaucratic potency and creates an expectation that measurable results will follow.

But the text of the plan itself also has several noteworthy features. For example:

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The ODNI plan instructs intelligence agencies to release substantive (though unclassified) intelligence information that could be of use to the public:

“The IC should review and provide appropriate information that is of current public utility, such as certain types of foundational information (including imagery). To facilitate the foregoing, the IC should develop a repeatable process of moving unclassified material not subject to other statutory protections to unclassified systems where it may be released.”

This important guidance points in a direction which is exactly the opposite of where CIA has taken its Open Source Center (now the Open Source Enterprise). After decades of providing open source material to the public through the Foreign Broadcast Information Service and then the OSC, the CIA terminated those public offerings in 2013. That move might now be reconsidered in light of the new transparency implementation plan (though CIA says it has no plans to do so).

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The new transparency policy (in principle 3d) calls on intelligence agencies to “consider the public interest to the maximum extent feasible when making classification determinations.”

This is a remarkable statement that goes beyond any requirement in existing classification policy. In particular, President Obama’s 2009 executive order 13526 on classification does not include the public interest as a factor in original classification decisions at all.

The new plan dutifully states that it does not “modify or supersede” executive order 13526. But it does in fact present a different classification construct, or at least a different emphasis. As the plan says, it “reinforces Executive Order 13526, which governs classification standards, while also guiding the IC to consider the public interest to the maximum extent feasible in conducting declassification reviews in order to make as much information available as possible while protecting intelligence information.”

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The new transparency plan could end up altering the future contours of classification policy throughout the intelligence community because it will inform the upcoming Fundamental Classification Guidance Review. That Review is a government-wide evaluation and recalibration of national security classification policy that is due to be completed by 2017.

“The ODNI should work with the Information Security Oversight Office to provide guidance to IC elements on updating classification guides. This guidance should be aligned with the Principles as appropriate,” the plan says, in what may prove to be a misleadingly bland passage.

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The IC plan does not mention the name of Edward Snowden. It speaks of the need to provide channels for “submitting concerns or observations on potential misconduct by IC offices or employees.” But it does not clearly recognize or grapple with what might be called the Snowden conundrum.

That is the peculiar fact that the telephone metadata collection activities that Snowden and, later, most members of Congress and the interested public found objectionable had been secretly approved by all three branches of government. Within the government, collection of “all” telephone metadata was not considered misconduct, potential or actual. As a consequence, “whistleblowing” about these fully authorized activities using internal procedures would have been inapt and ineffective.

The problem, rather, was that a “lawful” secret government program had exceeded the implicit boundaries of public consent. Under the circumstances, disclosure was the only way to resolve the conundrum. This is a failure of congressional oversight above all, but it ought to be faced squarely by each branch of government involved.

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“We believe transparency is worth the cost,” said DNI James R. Clapper in his October 27 speech announcing the new implementation plan.

“Because if the American people don’t understand what we are doing, why it’s important and how we’re protecting their privacy and civil liberties, we will lose their confidence and that will affect our ability to perform our mission — which ultimately serves them.”